The California Fair Employment and Housing Act (FEHA) was recently amended in several significant respects. These amendments include: (a) expanding FEHA’s scope to cover employers with at least five employees, only one of whom must work in California; (b) requiring employers to have a specific type of policy to prevent and correct discrimination and harassment; (c) expanding pregnancy disability leave; (d) expanding its protections; and (e) enhancing state enforcement mechanisms. The changes became effective April 1, 2016.
Expanded FEHA Coverage
The FEHA previously applied to employers who employed five or more employees within California. The FEHA, as amended, now counts employees working outside of California (so long as at least one employee works within California) when determining whether FEHA covers a particular employer.
Required Anti-Discrimination and Harassment Policy
Covered employers must now affirmatively put in place adequate policies to address discrimination and harassment. The FEHA amendments require specific procedures that must be included in discrimination and harassment policies, including what constitutes a proper complaint protocol, what substantive information is to be provided to employees within the policy and how the policy must be disseminated to employees. The anti-discrimination and anti-harassment policies also must be in writing, list the current protected categories under the FEHA, and provide information to employees that the FEHA does not permit coworkers, third parties, supervisors and managers to engage in discriminatory, harassing or retaliatory conduct. In addition, the amendments provide further details regarding the proper training methods and recordkeeping of required supervisor sexual harassment training.
Pregnancy Disability Leave Changes
The FEHA amendments clarify that Pregnancy Disability Leave (PDL) of four months is available per pregnancy, not per year; and that PDL need not be continuously taken. The FEHA amendments also expand the definition of "eligible female employee" to include transgender employees disabled by pregnancy, and specify that unlawful harassment because of pregnancy includes harassment based on childbirth, breastfeeding or any related medical conditions. Employers with five or more employees must post the most recent PDL notice, "Your Rights and Obligations as a Pregnant Employee."
The FEHA amendments incorporate discrimination and harassment protections provided to unpaid interns and volunteers, and those who present a driver’s license that can be issued to undocumented persons, which previously went into effect in January 2015.
Also, pursuant to the FEHA amendments, sexual harassment now includes harassment not motivated by sexual desire. In addition, the amendments include explanations of "quid pro quo" and "hostile work environment" sexual harassment.
Further, the sections of the FEHA covering disability and religious accommodation in the workplace have been amended. Employers may not discriminate against a person for requesting an accommodation for religion or disability, even if that accommodation is not granted. The use of a "support animal" may now constitute an appropriate accommodation, though requests for use of a support animal need not be automatically granted. Discrimination based on religious creed now includes "all aspects of religious belief, observance and practice, including religious dress and grooming practices." Employers cannot refuse to hire applicants to avoid the need to accommodate a religious practice.
Under the FEHA amendments, the Department of Fair Employment and Housing (DFEH) is now empowered to obtain "non-monetary preventative remedies" against employers. The DFEH may seek preventative remedies against employers who do not prevent discrimination or harassment, whether or not actual discrimination or harassment has been shown. Therefore, it is essential that employers ensure they have adequate preventative policies in place and update employment policies to ensure compliance with these recent FEHA amendments.
Employers with at least one employee in California should take steps to ensure they are complying with the FEHA, as amended.